Section 6-6-259

Actions by mortgagees or vendor in conditional sale contract, etc., against mortgagors or vendees, etc.

(a) If the action is by a mortgagee or his assignee against a mortgagor, or one holding under him, or by a vendor who has made a conditional sale reserving the title until the entire purchase money shall be paid, or his assignee, against his vendee or one holding under him, the defendant may, upon suggestion, require that the jury ascertain the amount of the mortgage debt or the unpaid balance of the purchase price of the article sold; and if the debt due is ascertained to be less than the value of the property sued for as assessed by the jury, judgment must be entered for the property sued for or if that is not to be had, then for the amount of the debt as ascertained by the jury. The court must also make an order that, if the debt so ascertained, interest and costs, shall be paid within 30 days, no execution or other process shall issue on the judgment; and on payment thereof to the plaintiff or to the clerk for his use, the clerk must, on the face of the record of the judgment, endorse the fact of such payment, and thereafter the plaintiff shall be deemed the unsuccessful party within the meaning of Section 6-6-262.

(b) When the action is by a mortgagee or by a vendor in a contract of conditional sale, or their assignee, against the mortgagor or the vendee, or one holding under them, and suggestion is made as provided in subsection (a) of this section, if the amount of the debt is ascertained to be less than the value of the property sued for and the defendant has given bond and taken the property into his possession and fails for 30 days after the judgment to deliver the property or pay the amount found to be due to the sheriff, execution may issue against the obligors in the bond for the amount of the debt assessed and the costs in like manner as provided in Section 6-6-262.

(c) In any action under the provisions of this article commenced by a mortgagee or by a vendor in a contract of conditional sale, or by their assignee claiming title under such mortgagee or vendor in a contract of conditional sale, in addition to any defenses appropriate to the action of detinue, the defendant may plead any matter of defense, including usury, that he might have pleaded if the action had been on the debt, except the statute of limitations.

(Code 1886, §2720; Code 1896, §§1477, 1478, 1480; Code 1907, §§3789-3791; Code 1923, §§7400-7402; Code 1940, T. 7, §§929-931.)